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Labor Board Acting General Counsel Issues Social Media Guidance

On May 31, 2012, the National Labor Relations Board (NLRB) Acting General Counsel Lafe E. Solomon issued a third report related to social media. Memorandum OM 12-59 acknowledges that employee use of social media relating to the workplace is increasing, and as a result employers have implemented new policies governing social media concerns, the report contains a proper policy and six incidents of overbroad policies.

Whether labeled as social media policies, electronic technologies procedures, confidentiality provisions, privacy policies, protection of employer information guidelines, intellectual property restrictions or contact with media and/or government agencies rules, policies addressing employers' concerns when employees communicate through social media, whether through Facebook, Twitter, YouTube, blogging or various other methods, cannot restrict the employee's rights under the National Labor Relations Act (NLRA).

Employers must be careful to implement a social media policy that is not ambiguous and provide sufficient examples of prohibited conduct so, in context, employees do not read the social media policy to prohibit Section 7 activity.  Failure to properly enact and enforce such a policy will result in unfair labor practice charges.

The Acting General Counsel focuses analysis on whether policies violate Section 8(a)(1) of the Act through maintenance of a work rule that "would reasonably tend to chill employees in the exercise of their Section 7 rights." Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). The memorandum details that are ambiguous as to their application to Section 7 activity, and contain no limiting language or context that would clarify to employees that the rules does not restrict Section 7 rights, are unlawful. The Memorandum also indicated that the Office of the General Counsel did not find that commonly used "savings clauses" cured otherwise unlawful provisions of an employer's social media policy because employees would not understand from a blanket disclaimer that protected activities are in fact permitted.

Employers should be aware of the developing aspects of social media policies and restriction. While the Acting General Counsel's Memorandum is not binding law, it does provide guidance to maintaining a lawful social media policy. Employers should consult with their labor attorneys to determine if their current policies are compliant.

By: Justin A. Morocco

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